Category: Renewables

1
DOJ’s Bird in the Hand: MBTA and BGEPA enforcement
2
Important Upcoming Energy Storage Events on the US West Coast
3
K&L Gates Policy Insight: Will Wyden Recharge the Batteries on the Finance Committee’s Energy Tax Reform Proposal?
4
Southern California Public Power Authority (SCPPA) Issues Renewable Energy and Energy Storage RFP
5
Energy Leadership Changes in U.S. Senate
6
Farm Bill Includes Energy Title
7
Imperial Irrigation District Energy Storage RFQ
8
Conclusions or Delusions? EU Aims To Set 2030 Renewable Energy Targets
9
K&L Gates is Gold Sponsor of Annual Storage Week in Santa Clara

DOJ’s Bird in the Hand: MBTA and BGEPA enforcement

The American Bar Association recently held its 28th annual conference for the White Collar Crime Institute in Miami, Florida.  http://www.americanbar.org/calendar/2014/03/white_collar_crime2014.html?sc_cid=CEN4WCC-CRS.

The Institute prides itself for showcasing the most significant white collar crime issues across the country.  At this year’s meeting, Stacey Mitchell – Chief of the Environmental Crimes Section at U.S. Department of Justice (DOJ) – discussed new areas and developments during a panel discussion on “The Expanding Net of Environmental Crimes Prosecutions.”

During the Q&A, Ms. Mitchell was asked about new areas of environmental criminal enforcement for DOJ.  She responded that enforcement actions against the wind energy industry would be new this year, and specifically, enforcement actions under the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).

While there is a lengthy history of MBTA and BGEPA enforcement, the focus thus far has been largely on individuals and the oil/gas industry – think poachers, farmers, and oil spills.  DOJ’s enforcement record has been mixed as it relates to prosecuting companies that are operating legally but where migratory birds are injured.  This year, however, Ms. Mitchell announced that DOJ would be taking a closer look at how wind companies comply with these laws.  Ms. Mitchell pointed to a recent plea deal with Duke Energy Renewables, and alluded to more cases on the horizon.  Just a few months ago the House Committee questioned the U.S. Fish & Wildlife Service about why it was prosecuting oil and gas companies under the MBTA and BGEPA, but not wind companies (see http://1.usa.gov/1fqL5Yt).

The Duke Energy Renewables (DER) plea was the first of its kind against involving a wind energy company.  In late 2013, DER plead guilty to two counts of MBTA violations for killing approximately 163 migratory birds, including 14 golden eagles at two wind farms in Wyoming.  Under the terms of the plea agreement, DER will pay nearly $1 million in fines and restitution, commit to taking up to $600,000 in operational adjustments per year for the life of the wind projects, and agree to file for an eagle take permit.

Other companies are being investigated under the MBTA and BGEPA, which establish criminal liability for unintentional take of migratory birds and eagles.  The MBTA is a “strict liability statute,” and the BGEPA is enforced under a general intent criminal standard.  The stakes are high for the wind industry given the low legal standards to sustain a conviction, the steep costs of operational adjustments, and the uncertain risks underlying bird/turbine interaction.  These risks are compounded by the fact that there is no MBTA permit for incidental take of migratory birds from industrial activities, and that an eagle take permit has never (to date) been issued to a wind farm.

It remains to be seen how DOJ will exercise its enforcement discretion to target wind companies.  But what is clear is that the wind industry may be DOJ’s bird-in-the-hand for high-profile environmental cases in the years to come.

Important Upcoming Energy Storage Events on the US West Coast

There’s a busy week ahead for those who are involved in energy storage on the US West Coast.

In California, the three investor owned utilities (Pacific Gas & Electric, Southern California Edison and San Diego Gas & Electric) have now applied to the California Public Utilities Commission (CPUC) for review and approval of their energy storage procurement plans.  The plans explain how each IOU intends to procure by 2020 its share of the 1,325 MW energy storage target set by the CPUC in D. 13-10-040.  The CPUC will be holding a workshop to provide information on the applications from 10am to 4pm on Friday, March 14, 2014, at the CPUC’s auditorium at 505 Van Ness Avenue, San Francisco.  There is also a call in number for the workshop: 866-830-4003, Participant passcode: 9869619.

A little to the north of California, energy storage is becoming a focus of attention in Oregon.  Renewables Northwest will be holding its Second Energy Storage Meeting in K&L Gates’ Portland Office, 1 SW Columbia St, 19th Floor, from 10am to Noon on Thursday, March 13.  The meeting will help interested parties prepare for an energy storage workshop organized by the Oregon Department of Energy and the Oregon Public Utility Commission, which will be held from 8am to 4:30pm on Wednesday, March 19 at the White Stag Building, 70 NW Couch St, Portland, OR 97209.   You can register for the workshop here.

Still further north, K&L Gates will be sponsoring a Washington Clean Technology Alliance meeting on Progress and Promise in U.S. Grid Energy Storage, Including Washington State, featuring special presentations by Dr. Imre Gyuk, U.S. Department of Energy, and Richard Locke, Washington State Department of Commerce.  This event will be held on March 20, 2014 from 4:00 to 6:30 pm at K&L Gates’ offices in Seattle, 925 4th Ave, Suite 2900.  Advanced tickets are required, and they’ll be on sale through March 16.  You can obtain tickets for the event here.

K&L Gates attorneys will be attending each of these events, and we look forward to seeing you there!

K&L Gates Policy Insight: Will Wyden Recharge the Batteries on the Finance Committee’s Energy Tax Reform Proposal?

 

In late 2013, the Senate Finance Committee released a tax reform staff discussion draft on energy (the “energy draft”) as part of a series of tax reform proposals. According to Committee staff, the energy draft “proposes a dramatically simpler set of long-term energy tax incentives that are technology-neutral and promote cleaner energy that is made in the United States.” Although the departure of former Chairman Max Baucus (D-MT) from the U.S. Senate has thrown the fate of energy tax reform into doubt, there is ample reason to believe that his energy draft has hydrogen left in the fuel cell. This alert describes the energy draft and offers insights on the possible next steps for the proposal.To read the full alert, click here.  Additional Resources: With so many different pieces to tax reform, it is easy to lose track of various proposals and materials. To access the most relevant tax reform information from the House Ways and Means Committee, Senate Finance Committee, the Administration, and others, please visit our Tax Reform Resources page.

February 25, 2014

Authors:
Mary Burke Baker
Government Affairs Advisor
mary.baker@klgates.com +1.202.778.9223
Cindy L. O’Malley
Government Affairs Counselor
cindy.omalley@klgates.com
+1.202.661.6228
Nicholas A. Leibham
Partner
nick.leibham@klgates.com
+1.202.778.9284
Karishma Shah Page
Associate
karishma.page@klgates.com
+1.202.778.9128
Ryan J. Severson
Associate
ryan.severson@klgates.com
+1.202.778.9251
Andrés Gil
Associate
andres.gil@klgates.com
+1.202.778.9226
David A. Walker
Government Affairs Specialist
dave.walker@klgates.com
+1.202.778.9346
 

For more information, please contact our Public Policy and Law professionals, or visit our practice page on the Web.

This Policy Insight is presented as part of the Global Government Solutions® initiative.

 

Southern California Public Power Authority (SCPPA) Issues Renewable Energy and Energy Storage RFP

The Southern California Public Power Authority (SCPPA) recently announced a Request for Proposals for Renewable Energy and Energy Storage Projects. In the RFP, SCPPA seeks proposals for — in addition to customary renewable energy products — “Permanent Load Shifting (PLS), including energy storage and permanent load-shifting technologies” and “energy storage solutions (ESS) for both distribution and grid levels.” According to the announcement, respondents may propose (i) project ownership by SCPPA, (ii) a power purchase agreement (or, for storage, an “equivalent commercial agreement”) with an ownership option, or (iii) a power purchase agreement (or, for storage, an “equivalent commercial agreement”) without an ownership option.

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Energy Leadership Changes in U.S. Senate

Last week, the U.S. Senate approved the nomination of Senator Max Baucus (D-MT) as the next U.S. Ambassador to China by a 96-0 vote. Although Senator Baucus’ departure will certainly have an effect on foreign policy, it has also set off a chain reaction as Senators move into key leadership positions on tax and energy issues.

Senator Baucus’ departure vacates the Chairmanship of the Senate Finance Committee, which has wide jurisdiction over all issues relating to tax, trade, and entitlement programs. In his place, Senator Ron Wyden (D-OR) will take the helm at the Finance Committee, leaving his current post as Chairman of the Committee on Energy and Natural Resources. Senator Mary Landrieu (D-LA) will replace Wyden as Chairman.

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Farm Bill Includes Energy Title

After years of negotiations, the United States House and Senate have passed a comprehensive Farm Bill which will be signed into law by President Obama on February 7 at Michigan State University, the alma mater of Senate Agriculture Committee Chair Debbie Stabenow (D-MI). On February 4, the Senate voted 68-32 to approve the five-year authorization bill, formally titled the Agriculture Act of 2014. The House passed the legislation last week.

While the bill predictably includes provisions which impact farm programs and also authorizes nutrition programs, in addition, it includes an Energy Title which provides support to many feedstock growers as well as traditional farmers who improve the energy efficiency of their operations.

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Imperial Irrigation District Energy Storage RFQ

The Imperial Irrigation District (IID), the third-largest public power utility in California, recently issued QR 123, the first step in a solicitation for 20 megawatts to 40 megawatts of “battery” storage. The solicitation seeks storage that can accommodate a very broad range of specified operational characteristics, and it may prove challenging for any given storage technology to meet all of those characteristics. The solicitation’s reference to “battery” storage implies that IID is not seeking flywheels or other energy storage technologies.

At this stage, QR 123 is in the nature of a request for vendors to supply their qualifications to “design, engineer, procure and construct a utility-scale energy storage project” that will have the desired operational characteristics. Responses are due February 11, 2014.

Information about QR 123 can be found here.

 

Conclusions or Delusions? EU Aims To Set 2030 Renewable Energy Targets

In an announcement awaited by industry, the European Commission has proposed the non-binding objective of increasing the share of renewable energy to 27% of the EU’s energy consumption in 2030. However, at the same time, an ambitious and binding target emerged: for the EU to reduce by 2030 domestic greenhouse gas emissions by 40% below the 1990 level. An extraordinary target or a disappointment?

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K&L Gates is Gold Sponsor of Annual Storage Week in Santa Clara

K&L Gates will be a Gold Sponsor at Infocast’s 7th Annual Energy Storage Week in Santa Clara from February 11-13. This event will address the projected rapid rise in energy storage project development over the next 3-5 years. Early movers in this market are poised to capture larger than average advantages. Policy makers and senior executives at the forefront of energy storage deployment will be attending the summit to share up to date information on the policies, procedures and industry best practices into business plans and to gain access to key players and decision makers across the entire supply and utilization chains of storage services to further storage projects. K&L Gates attorneys Bill Holmes, Paul Lacourciere, Dirk Michels, Charlie Schwenck and Andrew Young will be attending Infocast’s Energy Storage Week.  We look forward to seeing you there!

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